Month: January 2010

In today’s Irish Times (with added links):

Defamation Act a welcome but imperfect reform for libel cases

The Defamation Act [2009] which came into effect this month, is a significant improvement on the old law, but serious problems remain … [It] modernises the law. It provides statutory support for the Press Council and it makes it easier both to take and to defend libel cases. For these reasons, as the Act came into effect earlier this month, Andrew O’Rorke quite rightly afforded it a very warm welcome … However, it ducks some important reforms and bungles others, while some of its most significant provisions raise constitutional problems.

For example, it fails to account for internet service providers (ISPs) or to rebalance the burden of proof from the defendant to the plaintiff. The centrepiece defence of fair and reasonable publication is unworkably narrow. Those issues, along with the ease with which companies can take defamation actions under the Act, might even prove unconstitutional. …

The Defamation Act 2009 is a hugely significant piece of legislation, which has gone a very long way towards restoring fairness and stability to a notorious area of the law. However, in some important respects, the Act raises as many questions as it has answered and its deserved welcome must therefore be a qualified one.

Bonus links: (i) a long-running high-profile defamation case in New Zealand has just settled; (ii) in honour of the recent snow falls, a cartoon about defaming a snowman.

As the Supreme Court of Canada adopts a species of the responsible journalism defence to libel claims, the case that embodied the best opportunity that Irish law has had so far to do the same has come to an end. In Hunter v Duckworth, Ó Caoimh J in the High Court ([2003] IEHC 81 (31 July 2003)) seemed to approve of the defence (at least in the view of Charlton J in a later case), but the Supreme Court ducked the question and returned the case to the High Court. However, the case has now been settled. According to the Irish Times:

English barrister apologises to two Birmingham Six

An English barrister has apologised before the High Court to two members of the wrongly jailed Birmingham Six who had sued him for defamation over a pamphlet written by him which contained material meaning, the men alleged, they were “mass murderers”.

Sir Louis Blom–Cooper QC in an apology read by his counsel Douglas Clarke yesterday, said he “sincerely regrets certain unintended inferences” which have been drawn from the publication of the pamphlet in 1997.

He said “an unqualified apology for any suggestion of the guilt” of Hugh Callaghan and Gerry Hunter was “overdue”. “It is now made unequivocally,” the apology said.

Index on Censorship adds:

Birmingham Six Libel Case Settled

Barrister Louis Blom-Cooper has settled in a libel action brought against him by Birmingham six pair Hugh Callaghan and Gerry Hunter at the Dublin High Court. Hunter and Callaghan claimed that a 1997 pamphlet by Blom-Cooper, The Birmingham Six and Other Cases, had implied that they could be guilty of carryimg out the 1974 Birmingham pub bombings, in which 21 people were killed.

Blom-Cooper has apologised for any “unintended suggestion” of guilt. Other elements of the settlement cannot be revealed.

Ireland has one of the most expensive libel jurisdictions in Europe.

So ended the first case to make a strong argument about the impact of the constitution on Irish libel law. I sincerely hope it won’t be the last.

Today’s Irish Times carries two interesting interlinked reports. The first is about yesterday’s Press Council seminar in Cork, the second is about TV3’s exposure of Brian Lenihan’s illness, which – unsurprisingly – was one of the issues discussed at the seminar.

First, yesterday’s seminar in Cork:

Media’s role vital to liberty, says Dunne

Freedom would mean less without a free media, entrepreneur Ben Dunne told a seminar organised in Cork yesterday by the Press Council of Ireland. … He condemned the broadcast of the Brian Lenihan story on TV3 on December 26th, saying that it “crossed a line it did not need to cross”. However, he added that TV3 was not the only offender in relation to breaches of privacy.

Another speaker, Data Protection Commissioner Billy Hawkes, told the seminar that the phenomenal development of the internet posed challenges to traditional ideas of privacy and data protection. …

Tightening privacy laws is a recipe for “non-accountability, secrecy and duplicity”, the seminar was told by Paul Drury, managing editor of the Irish Daily Mail, who added that he was wary of any proposal to legislate for heightened privacy.

Paul Drury will be very well aware that TV3’s revelations of Brian Lenihan’s illness could make privacy legislation more likely, even though the Minister himself seems remarkably phlegmatic about it:

Lenihan says he was rushed into telling children about cancer

Minister for Finance Brian Lenihan has told a local newspaper [the Community Voice newspaper in Blanchardstown] he was rushed into telling his children about his cancer diagnosis on St Stephen’s Day because TV3 had decided to run the story. …

Mr Lenihan said while he did not see what public interest was served between St Stephen’s Day and the new year by TV3 broadcasting the story, he did not intend to lose sleep over it.

Update: Three quick comments. First, thanks, Damien, in the comments below, for pointing me towards the Examiner report on the seminar Dunne slates TV3 for lack of fairness. Second, I couldn’t agree more with Noreen’s comment below that ” the notion that there is supposed to be some kind of journalistic obligation to keep politicians’ secrets is deeply unsettling. It’s in the nature of the media to report the news about public officials. If you’re a journalist, it’s called doing your job”. And, third, there is more about Brian Lenihan’s interview with the Community Voice in a story in today’s Irish Independent.

From today’s Irish Times:

Press Council seminar on privacy

The Press Council is hosting a seminar on the relationship between the press, the internet and privacy at Jury’s Western Hotel in Cork on Friday.

Data Protection Commissioner Billy Hawkes, businessman Ben Dunne and Irish Daily Mirror editor John Kierans are among the speakers at the seminar, which hopes to generate an exchange of views between members of the media and the public.

The seminar, which is free and open to the public, begins at 2pm.

One of the reasons for delaying the coming into effect of the Defamation Act, 2009 from 23 July 2009 when it was signed by the President until 1 January 2010 was the need to amend the Rules of the Superior Court to provide for the changes to practice and procedure which it requires. Those changes are effected by SI No 511 of 2009: Rules of the Superior Courts (Defamation) 2009 (pdf). It inserts a new Order 1B in, and amend Order 22, Order 36 and Appendix B, Part II of the Rules of the Superior Court) to facilitate the operation of the Defamation Act, 2009. In particular, it makes provision for

• verifying affidavits under section 8,
• the procedures relating to various applications under sections 11 (multiple publication), 14 (meaning), 33 (prohibition order), and 34 (summary application), and under section 11(2)(c) of the Statute of Limitations 1957 (as amended by section 38),
• applications under section 23 relating to offers of amends,
• notification of evidence of apology under section 24, and
• particulars of evidence in mitigation (amending Order 22 RSC).

In an earlier post, I suggested a wording for a complete revision of Article 40.6.1(i) of the Constitution. That makes a recent Irish Times poll very interesting:

65% would support a referendum to remove the reference to blasphemy from the Constitution. So, how about it, Minister?

Cases dealing with the consequences of the European Court of Justice, striking down national tax provisions as inconsistent with EU law, just seem to keep on coming. In C-196/04 Cadbury Schweppes v Commissioners of Inland Revenue [2006] ECR I-7995 [2006] EUECJ C-196/04 (12 September 2006) the ECJ called the Controlled Foreign Companies taxation provisions of the Income and Corporation Taxes Act 1988 into question, having regard to EU law. Important restitution questions would then have arisen. However, in Vodafone 2 v HM Revenue & Customs [2009] EWCA Civ 446 (22 May 2009) the Court of Appeal (reversing the High Court [2008] EWHC 1569 (Ch) (04 July 2008)) nevertheless concluded that the provisions were susceptible to an interpretation conforming with EU law. The question now to be decided by the Tax Tribunal is therefore whether the vodafone arrangment is within that interpretation on the facts. But this appears to be the end of the line so far as the law is concerned. Just before Christmas, the UKSC blog reported that the UK Supreme Court declined to give Vodafone a Christmas present of leave to appeal against the Court of Appeal’s decision:

It was widely expected that this case would be heard by the Supreme Court. After all, it concerns the interaction of UK tax with European legal requirements, a lively area for legal debate. The appeal was also noteworthy for the sheer size of the tax at stake, estimated to be £2.2 billion. But none of this appears to have swayed the Supreme Court’s decision. It is a disappointment that the Supreme Court has not agreed to hear this case, as it raised an interesting question of how tax legislation should apply following a decision of the ECJ that such legislation is contrary to EC law.